Smoker sues over incurable tumour: Dying man who is claiming pounds 500,000 from Imperial Tobacco gives evidence to a commission in his front room

A MAN dying of lung cancer is suing Imperial Tobacco for pounds 500,000. Albert McTear, 49, claims his incurable bronchial tumour is the result of smoking 60 cigarettes a day over the last 30 years.

Yesterday the front room of his house in Ayrshire became an outpost of Scotland's highest civil court as he gave a full legal statement. A commission from the Court of Session in Edinburgh will produce a report on his statement which will be used when the action reaches final court proceedings.

Given the complexity of the case, and the precedent its findings could set, the final court stages could be more than two years away. However, deterioration in Mr McTear's health - doctors have given him only months to live - means he will probably die before the case is concluded. With his wife, Margaret, expected to take over the action after his death, the commission's report will give Mr McTear a posthumous role in the action he began.

The anti-smoking group Ash supported Mr McTear in the initial stages of the legal battle. However, in view of his deteriorating health, he was granted emergency legal aid. Mr McTear, his legal representative, lawyers acting for Imperial Tobacco, and a Queen's Counsel acting as the representative of the judge who will eventually be appointed to hear the case in Edinburgh, all met in the house in Beith. The proceedings were conducted in private. Even Mrs McTear was excluded.

Mr McTear's voice is barely audible, and his face and body almost skeletal. In the summons lodged at the Court of Session, he claims he was 'conned' into taking up smoking and that sufficient warnings of the dangers were not given by the tobacco industry. Under Scots law a pursuer can specify the level of damages he is suing for; in Mr McTear's case the figure is pounds 500,000.

In the United States, the Supreme Court recently ruled that health warnings on cigarette packets did not provide the industry with a complete defence.

If Mr McTear wins damages from Imperial Tobacco, or the tobacco company is held to be in some way responsible for his ill- health, the entire tobacco industry could see a flood of cases from others suffering from smoking-related illnesses. The costs to the industry would be astronomical.

Following Mr McTear's summons, Imperial Tobacco lodged an immediate defence. A lengthy period of response and counter- responses will now follow between the two parties until the matter reaches the final court stages.

Mr McTear sought the use of the commission himself to allow him to give oral evidence. In addition to his allegations about how the dangers of addiction were not explained, he is hoping the case will also highlight how advertising is persuading each new generation to take up smoking.

Also highly critical of Westminster, he believes British governments have effectively sanctioned smoking by failing to take strong action against tobacco advertising.

Mr McTear, who has three children, is receiving treatment at the Western General Hospital in Edinburgh. His wife says that he is virtually a prisoner at home as his condition gets steadily worse and he suffers increasing pain. A place has already been reserved at the Ayrshire Hospice for the 'inevitable time' when the family can no longer cope.